eNotes – Liability – July 2023 – New Jersey

SIGNIFICANT CASE SUMMARIES

New Jersey Case Summaries

DiFiore v. Pezic
New Jersey Supreme Court
No. A-58/59/60-21 (087091), ___ N.J. ____

Decided: June 15, 2023

N.J. Supreme Court holds Plaintiffs’ requests for recording, or for a third party observer (“TPO”), at an independent medical exam (“IME”) should be evaluated on a case-by-case basis and that video recording should be an option. The Court also affirmed the use of protective orders, restrictions on TPOs to prevent interference with the exam, and the use of neutral foreign or sign language interpreters. However, the Supreme Court rejected the Appellate Division’s holding placing the burden of proof on Plaintiff.

Background

This is a group of cases consolidated for the purpose of appeal. Plaintiffs in these several cases filed personal injury lawsuits alleging that they variously suffered cognitive limitations, psychological impairments, or language barriers. When Defendants in each case asked Plaintiffs to submit to an IME, Plaintiffs requested either to record the exams or to be accompanied by a TPO.

As you may recall, it was earlier reported here that the Appellate Division ruled that disputes over recording IMEs or allowing TPOs should be evaluated on a case-by-case basis with no absolute entitlement or prohibition, and that plaintiffs bore the burden of justifying IME recording or the presence of a TPO. The Appellate Division had further held that options should include video recording using a fixed camera that captured the words and actions of the plaintiff and the examiner. The Appellate Division also noted that parties could request protective orders when a recording or TPO might reveal proprietary information about the content or sequence of an IME. The Appellate Division further ruled that any TPO should be prevented from interacting with the plaintiff or interfering with the exam. Finally, the Appellate Division held that any plaintiff who needed a foreign sign language interpreter should receive a neutral interpreter mutually agreed upon by the parties or selected by the trial court. Plaintiffs appealed the judgment of the Appellate Division.

Holding

On appeal, the N. J. Supreme Court affirmed and modified the Appellate Division’s judgment. The Supreme Court affirmed that requests for IME recording or TPOs should be evaluated on a case-by-case basis and that video recording should be an option. The Court also affirmed the use of protective orders, restrictions on TPOs to prevent interference with the exam, and the use of neutral foreign or sign language interpreters. However, the Supreme Court rejected the Appellate Division’s holding placing the burden of proof on the plaintiff. Instead, the Court held that any defendant objecting to recording the IME or using a TPO, after a meeting or teleconference with plaintiff’s counsel, should instead file a motion and seek a protective order. In this regard, the Supreme Court held:

We therefore hold that if a plaintiff seeks to bring a neutral third-party observer to a Rule 4:19 exam, or to audio or video record the exam, plaintiff’s counsel should notify defendant. If defense counsel opposes the third-party observation or recording, the parties should meet and confer in an effort to reach agreement. Failing an agreement, defendant can move for a protective order under Rule 4:10-3 to bar the observation or recording.

The trial court must then decide what to permit or forbid with no absolute prohibitions or entitlements. In undertaking a case-by-case analysis, trial courts must balance both the need for an accurate record and the imbalance of power between a medical professional and a patient against any valid concerns regarding the expert’s ability to conduct an accurate assessment of the patient’s condition with a recording or a neutral third-party observer. The plaintiff’s age, ability to communicate, cognitive limitations, psychological impairments, inexperience with the legal system, and language barriers are all relevant to this determination; other factors may be as well.

The degree of possible negative impact on an examination must also be assessed.

It is important to note that, consistent with dicta at the end of this Supreme Court decision, defendants should – early in any significant case – demand the ability to “record or observe examinations by non-treating doctors arranged by plaintiffs’ counsel solely for the purposes of litigation.” Such a demand should be added to early discovery propounded by defendants in bodily injury cases.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

Keyworth v. CareOne at Madison Ave.
New Jersey Superior Court, Appellate Division
Nos. A-3751-21, A-0722-22

Decided: June 15, 2023

The Appellate Division, here dealing with the self-critical analysis privilege and the Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23 to – 12.25, overturned two separate Trial Courts’ Discovery Orders compelling a medical center to turn over accident investigation reports prepared shortly after the underlying accidents occurred, holding that the incident reports in both cases were developed during self-critical analysis as part of a patient safety plan under the PSA and thus were privileged.

Background

These are two cases consolidated for appeal. In one case, Plaintiff Madeline Keyworth alleged that she fell twice during her admission to Defendant CareOne’s facility. During discovery, Keyworth requested information regarding any statements made concerning the lawsuit and a copy of any statement unless protected by privilege. Defendants objected on grounds that the requested information and documents were privileged under the Patient Safety Act but admitted that there were two responsive incident reports. Following in camera review, the Trial Court ruled that the reports were not privileged.

In the second of these consolidated cases, Plaintiff Diane Bender was allegedly attacked while a patient at another CareOne facility by a fellow patient. However, Defendants allegedly failed to transport Bender to the hospital for five hours and turned away emergency services that Bender had summoned by calling 911. Bender died five weeks after the attack. During discovery, Defendants identified but declined to produce an incident report, again claiming that it was privileged under the PSA. The Trial Court again granted a Motion to compel production, noting that the assailant had since died and the needs of Plaintiffs’ case required disclosure.

Holding

On appeal, the Appellate Division reversed and remanded. The Court identified the question to be whether materials developed as part of self-critical analysis conducted pursuant to a facility’s patient safety plan are subject to discovery, disclosure, and admissible at trial. This analysis hinges upon whether the facilities involved in these cases met the requirements imposed by the PSA, rendering the materials sought by plaintiffs privileged and protected from disclosure.

The Court found that the incident reports in both cases were developed during self-critical analysis as part of a patient safety plan under the PSA and thus were privileged. However, the Court held that documents and information created outside the self-critical analysis process were subject to discovery. The Court further noted that Defendants could be compelled to produce a narrative outlining information in thousands of non-privileged medical records, but that a self-critical analysis document could not be used for this purpose.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.